Mr. Pat Swords and IDA Ireland

• Case Number: CEI/10/0003
• Decision Date: 02 June 2010
• Issuer: IDA
• Applied Rules: Art.7(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. Pat Swords and IDA Ireland

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/10/0003

Published on 2 June 2010

1. Summary of Commissioner's Decision:
2. Background
3. Scope of Review
4. Analysis and Findings
5. Decision
6. Appeal to the High Court

Appeal to the Commissioner for Environmental Information

European Communities (Access to Information on the Environment) Regulations 2007(S.I. No. 133 of 2007)

Appellant: Mr Pat Swords

Public Authority: IDA Ireland (IDA), Wilton Park House, Wilton Place, Dublin 2

Whether IDA was justified in its refusal of access to environmental information relating to the wind energy programme arising from reported comments of its Chief Executive.

Summary of Commissioner's Decision:

The Commissioner found that IDA was justified in its decision to refuse the request on the basis that it did not hold environmental information within the scope of the request. She found that section 7(5) of the Regulations allows IDA to refuse a request on the basis that the information is not held by it.

Background

On 13 December 2009, the Applicant sent an email message to IDA querying the basis for reported comments by the Chief Executive and asking about:

• the economic impacts of the wind energy programme
• its costs
• subsidies required for job creation and industrial grants
• resulting electricity prices
• loss of competitiveness in other manufacturing sectors and resulting job losses.

IDA made a decision on 12 January 2010 giving background information as regards its role. It said that it could not locate the information requested. It said that, as far as the decision maker could determine, the information did not exist. It detailed the searches undertaken and refused the request under Article 7(5) of the Regulations. The Applicant made an internal review application to IDA. He argued that IDA should have relevant facts and figures. The internal review decision of 1 February 2010 upheld the original decision.

The Applicant's appeal under the Regulations was submitted on 1 February 2010 and was accepted on payment of the statutory fee.

I have taken account of the submissions of the Applicant and IDA, the Regulations and Directive 2003/4/EC on public access to environmental information (the Directive). What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.

Elizabeth Dolan, Senior Investigator in my Office, sent her preliminary views to the Applicant on 17 May 2010. The Applicant responded and requested that I bring this appeal to a conclusion by way of a formal, binding decision.

Scope of Review

Under Article 12 of the Regulations, I must review the decision of IDA and affirm, vary or annul it. I emphasise, as I have had to do in other cases, that it is outside my remit as Commissioner to adjudicate on how public authorities carry out their functions generally. My Office does not have the authority to investigate complaints against public authorities or to provide an alternative dispute mechanism with respect to actions taken or not taken by public authorities; my role is confined to that prescribed in relation to appeals against decisions on requests for access to environmental information.

Applicant's arguments

The Applicant's submission includes much criticism of ''the programme proposed by the Chief Executive of the IDA''. He considers that the IDA is making public statements promoting wind power while failing to correctly report published data on the capacity factor. He says that he cannot understand why the information he requests cannot 'be answered within the available information that the IDA has''.

My Office asked the applicant to indicate what information he considered was held. He responded with his views on the role of wind energy and electricity prices. He argued that IDA should answer the questions posed as to what is the technical basis for the information in its press releases. He queried statistics used in statements to the media.

IDA's position

IDA's position is that it does not hold environmental information within the scope of the request. It confirmed, in response to queries from my Office that it had not undertaken any analysis of wind energy generation programmes and that some of the information used in the publication was sourced from Sustainable Energy Ireland. It said also that as IDA did not have responsibility for electricity generation policy or pricing, these matters should be addressed by the Department of Energy, ESB/Eirgrid and CER.

IDA provided details of the searches undertaken for the information at...